Australia’s 2015 UPR—NGO Coalition Fact Sheet 17
Policing
Oversight and accountability
Despite Australia receiving recommendations
on policing issues in 2011, police oversight and
accountability mechanisms in Australia fail to
ensure community members’ rights are upheld
in dealings with police.
In particular, there remain a lack of adequate
mechanisms to independently investigate
police related deaths and complaints. While
complaints regarding police conduct can be
made directly to the Ombudsman and/or
integrity or oversight bodies in some
jurisdictions, generally these matters are
referred back to the law enforcement agency in
question for investigation.1
In 2011, Queensland announced that the
primary investigation of deaths in custody
would be undertaken by the Coroner but this
has not been implemented in practice.2
In 2012, the Independent Broad-based Anticorruption Commission was established in
Victoria but despite having jurisdiction to
investigate police misconduct more than 90 per
cent of reports are referred back to Victoria
Police for investigation.
Increased police powers
Since 2011, various public order offences and
anti-protest laws in states and territories have
been introduced that that give broader
Jeremy King and Merys Williams, ‘In search of certainty’
(2014) 88 (12) Law Institute Journal, 12.
2
See QLD State Coroner, State Coroner’s Guidelines
2013, (November 2014), ch 11. It would appear the MOU
does not require direct investigation by the Coroner.
3
See, eg, Workplaces (Protection from Protesters) Act
2014 (Tas); Criminal Code Amendment (Prevention of
Lawful Activity) Bill 2015 (WA); G20 (Safety and Security)
Act 2013 (Qld). See also the Police Administration Act
2014 (NT) where members of the police can detain
someone for up to four hours if the police believe that
person has committed, or is about to commit an
infringement notice offence, such as swearing or littering.
4
Tory Allard, ‘Understanding and preventing Indigenous
Offending’ Research Brief 9 (Indigenous Justice Clearing
House, December 2010); Aboriginal and Torres Strait
Islander Social Justice Commissioner, Human Rights and
Equal Opportunity Commission of Australia, ‘Issue 3: Law
and public order, including juvenile justice’ Submission to
the United Nations Committee on the Rights of the Child
for their Day of General Discussion on the Rights of
Indigenous Children (2003)
1
discretionary powers to police that can be used
to stifle legitimate protest activity and adversely
impact on human rights. 3 These laws also
disproportionately impact on youth, Aboriginal
and Torres Strait Islander peoples, homeless
and mentally ill individuals.4
There is also increasing use of non-police law
enforcement officers such as Protective
Service Officers (PSOs) in some jurisdictions.
PSOs are provided with less training than police
but have the same powers to use force, and are
issued with semi-automatic guns, batons,
Tasers and OC spray. PSOs have been
criticised for misusing their powers and using
excessive force.5
Use of force
Excessive use of force by police due to
inadequate regulation and training remains a
serious concern. In particular, ‘non-lethal’
weapons such as Tasers and capsicum spray
are often misused. The deployment of Tasers
has contributed to an overall rise in the use of
force in some jurisdictions and nationally. 6
Tasers have been associated with five deaths,
all of which raise credible allegations of
excessive or inappropriate use. 7 The regular
misuse of OC spray by police and PSOs, 8
highlights the lack of accountability and
misunderstanding by the police of their human
rights obligations.
<https://www.humanrights.gov.au/issue-3-law-and-publicorder-including-juvenile-justice-submission-united-nationscommittee-rights>; Crime and Misconduct Commission,
‘Policing Public Order, A Review of the Public Nuisance
Offence (May 2008).
5
Federation of Community Legal Centres (Vic), Tracking
Protective Services Officers: Insights from the first three
years, (April 2015).
6
One such example is NSW. See NSW Ombudsman,
How are Taser Weapons Used by the NSW Police
Force?, (October 2012), ch. 9.1.
7
For example, the death of Roberto Curti in 2012.
8
In Victoria, between 2011 and August 2014 90 children
under the age of 15, were sprayed by Victoria police,
Police Accountability Project ‘Story of a pepper spray
party’ (17 February 2015)
<http://www.policeaccountability.org.au/use-of-force/storyof-a-pepper-spray-party/>; Federation of Community
Legal Centres (Vic), Tracking Protective Services Officers:
Insights from the first three years, (April 2015).
1
Monitoring of police
Racism in policing
A race discrimination case (Haile-Michael and
Others v Commissioner of Police and Others)
involving a claim of racial profiling against
Victoria Police by a number of young men of
African descent resulted in a landmark
settlement in 2013. Victoria Police agreed to
conduct a public consultation and have
announced an action plan to tackle racism, and
improve community engagement. 9 As part of
this plan a trial of ‘stop and search’ receipting
began in early 2015 to record police
interactions with the community. 10 However,
this trial has been criticized by advocates as it
will not include the collection of data about the
race or ethnicity of the community member.11
There is insufficient public reporting and
monitoring of police powers, including use of
force, across Australia. In each jurisdiction,
disaggregated data on use of force incidents
should be publically available and monitored
by an independent body.
Proposed Recommendations:
Data on use of force and field contacts should
be publically released and monitored by an
independent body.
Despite these welcome steps in Victoria, racial
minorities and Aboriginal and Torres Strait
Islander
people
continue
to
be
disproportionately targeted by police.12
Proposed Recommendations:
Australia should
1. establish independent and effective
mechanisms to investigate police related
deaths and complaints,
2. legislate to regulate the use of force in a
human rights compliant manner, and
3. mandate human rights and anti-racism
training for police.
Anthony Kelly, ‘An End to Racial Profiling in Sight’,
Insight Magazine: Issue 8 (available at
http://insight.vcoss.org.au/an-end-to-racial-profiling-insight/).
10
Victoria Police, Receipting Proof of Concept, (7 May
2015)
http://www.police.vic.gov.au/content.asp?Document_ID=4
3758.
11
Police Accountability Project ‘Receipting Pilots
underway in Victoria’ (27 March 2015)
9
<http://www.policeaccountability.org.au/receipting/receipti
ng-pilots-underway-in-victoria/>.
12
Victoria Police, Equality is not the same (December
2012). NSW Ombudsman, Consorting Issues Paper:
review of the use of the consorting provisions by the NSW
Police Force, Division 7, Part 3A of the Crimes Act 1900
(November 2013) 9; NSW Ombudsman, ‘How are Taser
Weapons Used by the NSW Police Force?’ (October
2012) 99.
2